Amnesties and the International Criminal Court?

AMNESTY: PURPOSE AND JUSTIFICATION

As far as the transition of states from war situation to peace is concerned, writers have argued that the granting of amnesties for crimes of international concern is an inevitable choice [4]. This view appears justified when it is considered that amnesties have played significant role at the various phases of political negotiation and national reconciliation efforts in such nations as Chile [5], Columbia [6], East- Timor [7], Mozambique [8] ,Sierra Leone [9], Uganda [10] and South Africa [11]. For instance, in justifying the need for amnesties in South Africa’s political transition, Justice Mahomed noted in the case of The Azanian Peoples Organization (AZAPO) v The President of the Republic of South Africa and ors. [12] that ‘but for a mechanism for amnesty, the ‘‘historic bridge’’ [the negotiated transition to democratic rule] itself might never have been erected.’

To be sure too, the United Nations does not rule out the possibility of amnesties in the quest for lasting peace. At least, in 1993, the United Nations expressed full support for the Governors Island Agreement which granted full amnesty to members of General Cedras’ and Brigadier General Biamby’s military regime accused of committing crimes against humanity in Haiti from 1990-1994. According to the Security Council, the Agreement was ‘the only valid framework for resolving the crisis in Haiti [13]’ Even more instructive, is the fact that amnesty is also a choice endorsed in the United Nations Guidelines for United Nations Representatives on Certain Aspects of Negotiations for Conflict Resolution [14]. According to the Guidelines:

"…demands for amnesty may be made on behalf of different elements. It may be necessary and proper for immunity from prosecution to be granted to members of the armed opposition seeking reintegration into society as part of a national reconciliation process. Government negotiators may seek endorsement of self-amnesties proposals; however, the UN cannot condone amnesties regarding war crimes, crimes against humanity and genocide or foster those that violate relevant treaty obligations of the parties in this field."

Thus, while there appears to be an international recognition for amnesties as a vital tool for peace building, it is certain that amnesties for international war crimes, crimes against humanity and genocide are not permissible under international human rights law. The jurisprudence of the International Criminal Tribunal for Yugoslavia (ICTY) demonstrated this in the case of Furundzija [15] where the Trial Chamber stated that due to the importance of the values it protects, a State cannot avoid its responsibilities by absolving perpetrators of torture through amnesty law.

Yet, the endorsement of amnesties in some circumstances by the United Nations Guidelines does in itself excuse accountability for international crimes for some category of persons. This is necessary particularly where conflict involve large scale violations of the laws of war by people. Therefore, limited amnesty for those who bear less responsibility is a good tool for ending civil wars, facilitating the transition to democratic civilian regimes [16] or aiding the process of reconciliation [17]. Also it is instructive that the truth about international crimes may never be told if a person subject to a domestic amnesty (on condition of full disclosure of his or her involvement in the international crime) fears prosecution if he or she crosses a border [18]. It is uncertain whether the Rome Statute of the International Criminal Court will not recognise these practical realities, in performing its complementary role to national criminal jurisdictions.

AMNESTY AND THE INTERNATIONAL CRIMINAL COURT

The Rome Statute is silent about amnesties. This leaves room for speculation and does suggest that the grant of amnesties to international criminals either by the national authorities of a State party to the Rome Statute of the ICC or by Truth and Reconciliation Commissions might conflict with the exercise of the jurisdiction of the ICC or constitute an obstacle to prosecutions before it [19]. This quandary will feature prominently in the exercise by the ICC of its ‘complimentary arrangement’ among others.

THE PRINCIPLE OF ‘COMPLEMENTARITY’

It is noteworthy that by virtue of paragraph 10 of the preamble and article 1 of the Rome Statute, the power of the ICC to exercise jurisdiction over persons for international crimes is complementary to national criminal jurisdiction. Article 17 of the Rome Statute generally recognises that the ICC will be complementary to national criminal jurisdiction and that the ICC will only prosecute where the state is unable [20] or unwilling [21]. Thus, an interesting question is whether on the basis of the principle of complementarity, the ICC may consider the State unwilling and unable to prosecute the crimes that fall within its jurisdiction and enact a request for arrest and surrender of the persons to whom amnesty has been granted by the States.

In addressing this question, the provisions of article 17 (1) (b) and (d) of the Rome Statute are very significant. It provides that: Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(b)The case is being investigated or prosecuted by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(d) The case is not of sufficient gravity to justify further action by the Court It is argued that where genuine national proceedings have preceded the grant of amnesties in the interest of peace and reconciliation, as in the cases of South Africa [22] and Mozambique [23] it is unlikely that such will be regarded as constituting unwillingness or inability of the State to prosecute. This is more so considering that such national proceedings on amnesties will agree with the spirit of the Rome Statute as indicated by the preamble [24] which is to put an end to impunity and contribute to the prevention of international crimes. Further reinforcing this is the view of writers that there appears to be some recognition of amnesties on the basis of article 53(2) (c), which allows the Prosecutor to refuse prosecution where he or she concludes that ‘a prosecution is not in the interests of justice, taking into account all circumstances,’ article 16 giving the Security Council the power to defer proceedings; and article 15, which gives the Prosecutor discretion to decline to prosecute proprio moton[25].

Also, since amnesties often involve accountability measures such as truth commissions which focus on reconciliation, victims’ satisfaction and restitution, it is difficult to state that this does not agree with the concepts of restitution and reparations to victims as provided by article 75(2) of the Rome Statute which indicates that the Court may issue directly against a convicted person an order for reparations.

CONCLUSION

Accountability for international crimes has become axiomatic with the coming into effect of the Rome Statute of the ICC. Amnesty however is a vital tool of reconciliation, restitution and peace building for nations in transition. Although, the Rome Statute of the ICC is silent about amnesties, it is feasible from its certain provisions that the power of the ICC to prosecute crimes of international concerns is not absolute. The ICC may be influenced by the Security Council not to prosecute and it may not assume jurisdiction to prosecute unless a state is unwilling or unable to prosecute indictees. The principle of complementarity of the ICC appears not to have excluded limited amnesties granted by states to those who bear less responsibility in crimes of international concern. This is within the broader practice of the United Nations which does not reject limited amnesties as part of national reconciliation if done not to excuse perpetrators for the most serious crimes of international concern. Amnesties agree with the spirit of the Rome Statute which is not only aimed at the prosecution of international crimes but in their prevention and promotion of peace and security. These realities make it difficult to state that amnesties are not compatible with the Statute of the ICC.

* Jegede Ademola Oluborode is a legal practitioner and a human rights activist in Nigeria.

* Please send comments to [email protected] or comment online at http://www.pambazuka.org/

NOTES:

1. H Arendt The Human Condition (1958)Chicago IL: University of Chicago Press 171

2. Amnesty literally means ‘a pardon extended by the government to a group or class of persons, usually for a political offence; the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet been convicted’. Black’s Law Dictionary 8th edition 2004.

3. The Holy Bible, King James Version Isaiah Chapter 43 verse 25.

4. D Orentlicher ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 The Yale Law Journal 2537; D Cassel ‘Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities’ (1996) 59 Law and Contemporary Problems 225; J Dugard ‘Dealing with crimes of a past regime. Is amnesty still an option?’(1999) 12 Leiden Journal of International Law 1009.

5. In 1978, the Chilean military granted itself a broad amnesty that covered most of its crimes from 1973 (when it took power) until 1978. See Chile Executive Decree No 2191 of April 18, 1978.

6. ‘KR trials are vital, but won’t solve everything’ Phnom Penh Post 20 December 2002 – 2 January 2003 Issue 11 to 26.

7. Regulation No. 2001/10 on the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor UNTAET/REG/2001/10 13 July 2001.

8. In 1992, Mozambique adopted through its Parliament a general amnesty for ‘crimes against the state’ 10 days after the signing of the 1992 Peace Agreement, which brought an end to 16 years of armed conflict between the warring parties in Mozambique. See H Cobban www.archipelago.org/vol10-34/cobban.htm

9. Truth and Reconciliation Commission Act of 22 February 2000 (Sierra Leone) and art XXVI of the 1999 Lomé Peace Agreement.

10. The Amnesty Act of 2000 offers pardon to all Ugandans engaged or engaging in acts of rebellion against the government of Uganda since 26th January 1986. See Refugee Law Project 2005. ‘Whose Justice? Perceptions of Uganda’s Amnesty Act 2000: The Potential for Conflict Resolution and Long-term Reconciliation.’ Working Paper No. 15 February 2005 4.

11. South Africa National Unity and Reconciliation Act 34 of 1995 which sets up a mechanism to grant a broad amnesty for those who had committed politically motivated crimes during the apartheid regime and who fully disclosed all acts in respect of which amnesty was sought. When granted, the amnesty exempted individuals from criminal prosecutions and barred civil suits for damages.

12. The Azanian Peoples Organization (AZAPO) v The President of the Republic of South Africa and ors. 1996 4 SA 671 (CC) para 22.

13. Statement of the President of the Security Council, UN SCOR, 48th Sess., 329th meeting at 26, UN Doc. S/INF/49 (1993). See M Scharf ‘Swapping amnesty for peace: Was there a duty to prosecute international crimes in Haiti?’ (1996) 31 Texas International Law Journal pp 1-42.

14. www.ohchr.org/Docments/Publications/RuleoflawTruthCommissionsen.pdf (accessed on 25 February 2008).

15. Prosecutor v. Furundzija (10 December 1998) IT-95-17/1-T, Judgment of the Trial Chamber p 155.

16. N Roht-Arriaza ‘State responsibility to investigate and prosecute grave human rights violations in international law’ (1990) 78 California Law Review p 451.

17. no 11 above.

18. AZAPO (n 12 above) pp 683-685.

19. Paper delivered by R May, Judge of the International Criminal Tribunal for the former Yugoslavia (6 – 7 November 2003).

20. According to art 17(3) of the Rome Statute, in order to determine inability in a particular case, ‘the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.’

21. According to art 17(2) of the Rome Statute, in order to determine unwillingness, the Court ‘shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.’

22. no 11 above.

23. no 8 above.

24. Preamble: the States to this Statute [….] Recognizing that such grave crimes threaten the peace, security and well-being of the world, Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation, Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes, Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes (emphasis added).

25. M Scharf ‘The amnesty exception to the jurisdiction of the International Criminal Court’ (1999) 32, Cornell International Law Journal p 507; R Wedgwood ‘The International Criminal Court: An American view’ European Journal of International Law (1999) 10 p 97.